Finally pulling the trigger on one of the longest-running questions about administration healthcare policy, President Trump on Friday officially rolled back the Affordable Care Act’s contraceptive mandate. The action takes effect immediately.
The rollback exempts a wide range of employers from the requirement that they offer birth control to their employees without co-pays or deductibles. It’s a sop to religious ideologues in the Republican base, and a flagrant attack on women’s reproductive health rights, and it’s abetted by a clutch of anti-contraception ideologues installed at the Department of Health and Human Services. They’ve been pushing to narrow women’s birth control choices for years with widely debunked pseudoscientific claims that birth control produces mental health problems and breast cancer, that it doesn’t work and that it promotes promiscuity.
According to a notice published Friday in the Federal Register, the new policy is cloaked in claims of “religious freedom.” The notice says its aim is to “protect religious beliefs for entities and individuals” with objections to contraceptive coverage, as well as “moral convictions” against contraceptives. It expands the exemption well beyond houses of worship and religious nonprofits. The policy goes well beyond the exemption carved out by the Supreme Court, in its 2014 Hobby Lobby decision, for privately held for-profit companies whose owners claimed religious or moral scruples against birth control.
Legal experts say the rule change is vulnerable to legal challenge, despite the White House’s wishes. Because it was published as an “interim final rule,” the administration claims, it can be effective immediately. That may not be so, as IHPI member Nicholas Bagley of U-M Law School observes.
Normally, a rule change of this magnitude must go through lengthy comment and hearing procedures spelled out in the Administrative Procedures Act. Those procedures could delay the rule for a year or more. Trump attempts to circumvent the act by claiming there’s “good cause” to implement the rule now. Among other things, the White House says delaying the exemption could “increase the cost of health insurance” for some employers, though it can’t say how many would be affected.
Bagley doubts that’s good enough. “Good cause exists when notice and comment is ‘impracticable, unnecessary, or contrary to the public interest,’” he wrote. “That’s a flexible standard, but the courts have said that it ‘is to be narrowly construed and only reluctantly countenanced,’ with its use ‘limited to emergency situations.’”
Procedurally, Bagley writes, “the administration still hasn’t offered a cogent explanation for why it thinks it can amend an existing rule, and adopt a new one, without going through notice and comment. Substantively, HHS doesn’t have the authority to excuse employers from complying with a statute because they have moral objections.”